A new Department of Homeland Security (DHS) Office of Inspector General (OIG) Report, "Allegations of Misconduct and Illegal Discrimination and Retaliation in the Federal Air Marshal Service," released in embargoed form to select news agencies, appears to be a significant vindication for Federal Air Marshal whistleblowers.
Prompted by a 2010 CNN exposé that there was rampant discrimination and whistleblower retaliation at the Orlando Federal Air Marshals Service (FAMS) office, the DHS OIG investigated agency-wide abuses. The report confirms a pattern of retaliation against Air Marshals who challenged security breaches by FAMS management. It singled out the termination of a whistleblower to illustrate a culture of retaliation and resulting mistrust that it warned will be TSA's largest challenge to overcome, and recommended corrective action.
The best corrective action would be to reinstate the whistleblower who was fired, Robert MacLean. Currently TSA is fighting his legal appeal in court.
MacLean blew the whistle successfully to challenge a 2003 FAMS order canceling Air Marshal coverage during a confirmed terrorist plan for a hijacking reminiscent of the 9/11 attacks. The reason for cancelled coverage? TSA wanted to save money on overnight hotel costs after blowing its budget on failed buddy system contracts.
Thanks to MacLean's warning and resulting congressional outrage, TSA withdrew the order. Three years later TSA declared the order secret and fired MacLean for revealing it, somehow claiming that he breached security by revealing and stopping a plan to abandon the flying public during a terrorist alert.
This modern Paul Revere's warning may have changed the course of history by preventing a rerun of 9/11. Why was MacLean reprimanded for, by definition, carrying out the service's mission? According to FAMS website:
The Federal Air Marshal Service promotes confidence in the nation's civil aviation system through the effective deployment of Federal Air Marshals (FAMs) to detect, deter, and defeat hostile acts targeting U.S. air carriers, airports, passengers, and crews.
But TSA's legal position is that MacLean breached his duty. That is true only if his duty is to protect the bureaucracy instead of the public. Equally contradictory, the OIG report found, "Limited transparency in management decisions is also at the center of fears of [whistleblower] retaliation" but it stopped short of stating the Service's mission was in danger.
Few FAMS will follow MacLean's suit and commit professional suicide to protect the flying public. Federal rights under the Whistleblower Protection Act (WPA) were already weak before MacLean blew the whistle; employees are exempt from WPA protection if they report abuses related to their job duties; if they make a disclosure to your supervisor; or if they are not the pioneer whistleblower of their issue, to name a few! However, in Robert MacLean v. Department of Homeland Security, the MSPB further undermined congress' intent when it ruled that agency regulations can cancel out rights under the Whistleblower Protection Act, leaving MacLean and other FAM whistleblowers legally twisting in the wind.
TSA should make it right with Mr. MacLean, and the public he defended. As stakeholders, the flying public can support MacLean and sign a petition and alert asking for Congressional intervention.
Shanna Devine is Legislative Campaign Coordinator for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.